Adverse Labor Actions: When Are They Illegal?

In most workplace discrimination or retaliation cases, the harm suffered is quite clear—harassing, firing, or denying an employee a promotion. These are all examples of adverse employment actions. But not everything we consider unfair is illegal. So what retaliatory measures are severe enough to be considered illegal and worthy of a report?

Adverse labor action under the law

The US Supreme Court defines that actions against an employee that are harmful enough to “dissuade a reasonable person from making or supporting a charge of discrimination” can be considered against the law. In addition, if the discrimination had an adverse effect on the job’s terms, conditions, or benefits, it is also deemed illegal. 

However, applying definitions to real-world situations can lead to confusion and uncertainty. Unless your case is exactly the same as that of a previous plaintiff who successfully demonstrated discrimination, there is always the possibility that a judge or employer will believe that your situation is different and that the legal precedent from the previous case should not apply to you.

Examples of conduct that are more likely to be considered adverse employment actions

The most likely examples of legally actionable adverse employment decisions include situations where your employer:

• Does not want to hire you
• Fires you
• Denies you a raise
• Reduces or demotes your salary
• Emotionally or physically abuses you
• Gives you unjustifiedly negative performance reviews

If you experience retaliation or discrimination in any of the above ways, virtually all federal courts will find that you were the victim of adverse employment action. But remember that the above actions must be due to a protected class or characteristic.

For example, if your boss fires you because he doesn’t like the car you drive, you are definitely the victim of adverse employment action. However, the type of car you drive is not a legally protected trait. Therefore, you cannot sue for unlawful discrimination.